Citation Nr: 1301284 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-42 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as due to a service-connected deviated nasal septum. 2. Entitlement to a disability rating greater than 40 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active service from August 1954 to April 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, in which the RO denied, in pertinent part, the Veteran's claim of service connection for obstructive sleep apnea and also denied his claim for a disability rating greater than 40 percent for bilateral hearing loss. A RO hearing was held in March 2010 and a copy of the hearing transcript has been added to the record. A Travel Board hearing was held at the RO in March 2011 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In June 2011 and April 2012, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The issue of entitlement to service connection for a nasal scar has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board previously referred this claim to the RO in July 2011 and April 2012. To date, however, the RO has not taken any action on this claim. Therefore, the Board does not have jurisdiction over this claim and it is referred again to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Unfortunately, as is explained below in greater detail, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claims of service connection for obstructive sleep apnea, to include as due to a service-connected deviated nasal septum, and for a disability rating greater than 40 percent for bilateral hearing loss can be adjudicated. In its April 2012 remand, the Board directed the RO to contact the Veteran to identify all VA and non-VA treatment and obtain any records identified. The RO sent a letter to the Veteran requesting such information in April 2012 and obtained all VA treatment records through June 2012, which are included on the Veteran's Virtual VA electronic record. Subsequently, the RO was to schedule the Veteran for VA examinations with respect to the issues on appeal. The claims file shows that the Veteran underwent a VA examination to address his claim for sleep apnea in May 2012 as well as a VA examination to address the severity of his hearing loss in June 2012. The Board then directed the RO review all the evidence received since the last prior adjudication and readjudicate the Veteran's claim. Although the RO issued a supplemental statement of the case (SSOC) in October 2012 to address the issues on appeal, it did not consider the additional information received since the prior January 2012 SSOC. There is no mention of the additional VA examinations done in May and June 2012, the additional VA treatment records associated with the Virtual VA electronic record, or even the Board's April 2012 remand. In fact, it appears that the RO simply copied the prior January 2012 SSOC and did not review any of the new evidence received since that time. Accordingly, this case must be returned for readjudication of the issues on appeal, to specifically include consideration of the additional evidence received since the January 2012 SSOC. Further, the October 2012 SSOC was not sent to the Veteran's current address of record and was returned to the RO as undeliverable and then forwarded to the Board. Thus, in order to afford the Veteran his full procedural rights, this case must also be returned so that an SSOC addressing the additional evidence can be sent to the Veteran's current address of record. See 38 C.F.R. § 19.31 (2012). Where the remand orders of the Board were not complied with, the Board itself errs in failing to insure compliance. In such situations the Board must remand back to RO for further development. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 104-05. Accordingly, the case is REMANDED for the following actions: The RO should review all evidence received since the last prior adjudication, to specifically include the April 2012 Board remand, May 2012 VA examination, June 2012 VA examination and additional VA treatment records to June 2012, and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, the RO should issue a supplemental statement of the case to be sent to the Veteran's correct address of record that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).